Opinion 89-55

This
opinion represents the views of the Office of the State
Comptroller at the time it was rendered. The opinion may no
longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on
the issues discussed in the opinion.

POLICE AND POLICE PROTECTION -- Police Chief (delegation of
power to determine promotions) -- Police Department (delegation
to chief of police of power over promotions)
LOCAL LAWS -- Transfer of Functions (delegation to chief of
police of power over promotions)

TOWN LAW, §§150, 152; MUNICIPAL HOME RULE LAW, §10(1)(ii)(a),
(d)(3): A town board may adopt a local law, subject to
mandatory referendum, transferring the town board's power over
promotions within the police department to the chief of police.

You ask whether the town board, which presently awards all
promotions within the town police department, may delegate that
authority to the chief of police.

Town Law, §150(1) authorizes the town board of any town to
establish a town police department, appoint a chief of police
and such officers and patrolmen as may be needed and fix their
compensation. Town boards are also authorized to determine, in
accordance with applicable civil service and other statutory
requirements, that promotions of officers and members of the
police department shall be made (Town Law, §152).

If a town board creates a police commission or designates
the town supervisor as commissioner, the commission or
commissioner shall have and exercise all powers conferred upon
the town board with respect to the police department, including
the power to determine promotions (Town Law, §150[2]). There
is no similar authority in the Town Law, however, to confer
upon the chief of police the power to award promotions.

While the Town Law does not authorize the town to delegate
the power to determine promotions to the chief of police, we
note that Municipal Home Rule Law, §10(1)(ii)(a)(1) empowers
local governments to adopt and amend local laws, not
inconsistent with the Constitution or any general law, relating
to, among other things, the powers and duties of its officers
and employees. Additionally, section 10(1)(ii)(d)(3)
authorizes a town to supersede any provision in the Town Law
relating to the property, affairs or government of the town or
to other matters in relation to which and to the extent to
which it is authorized to adopt local laws, subject to certain
stated exceptions which are not relevant here. Pursuant to the
foregoing provisions of the Municipal Home Rule Law, it is our
opinion that a town may adopt a local law transferring to the
chief of police the power to determine that promotions of
officers and members of the police department be made.

We note, however, the Municipal Home Rule Law, §23(2)(f)
provides that any local law which abolishes, transfers or
curtails the powers of elected officials shall be subject to
mandatory referendum. Therefore, since a local law delegating
the power over promotions from the town board to the chief of
police would transfer a power of the elected town board, it
would be subject to mandatory referendum.

December 29, 1989
John C. Jilnicki, Esq., Deputy Town Attorney
Town of East Hampton